In two anticipated opinions, the Ohio Supreme Court has finally found an intentional tort statute that passes muster under Ohio’s constitution. The opinions – Stetter v. R.J. Corman Derailment Servs. and Kaminski v. Metal & Wire Prods. Co. – confirm the constitutionality of R.C. 2745.01. This statute provides:
(A) In an action brought against an employer by an employee, or by the dependent survivors of a deceased employee, for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.
(B) As used in this section, “substantially certain” means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.
(C) Deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance creates a rebuttable presumption that the removal or misrepresentation was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.
To understand the importance to Ohio’s businesses of these decisions and the statute they uphold, we first need to take a little trip back in time to see where we’ve been. Workers’ compensation generally provides employers with immunity from civil lawsuits for workplace injuries. A limited exception exists for what is known as an “intentional tort.” The Ohio Supreme Court first recognized this exception in 1982 in Blankenship v. Cincinnati Milacron Chems., Inc. Supreme Court developed this theory over the years in in cases such as Jones v. VIP Dev. Co., Van Fossen v. Babock & Wilcox Co., and Fyffe v. Jeno’s, Inc.
Under these prior cases, to establish the requisite “intent” for a workplace intentional tort, one would have to show:
- knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation;
- knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty; and
- that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task.
As the Fyffe court further explained:
To establish an intentional tort of an employer, proof beyond that required to prove negligence and beyond that to prove recklessness must be established. Where the employer acts despite his knowledge of some risk, his conduct may be negligence. As the probability increases that particular consequences may follow, then the employer’s conduct may be characterized as recklessness. As the probability that the consequences will follow further increases, and the employer knows that injuries to employees are certain or substantially certain to result from the process, procedure or condition and he still proceeds, he is treated by the law as if he had in fact desired to produce the result. However, the mere knowledge and appreciation of a risk – something short of substantial certainty – is not intent.
On at least two occasions after Fyffe, the Ohio Supreme Court struck down as unconstitutional statutes that attempted to tighten the Van Fossen/Fyffe common law rules for workplace intentional torts. Thus, until the enactment in 2005 of the current R.C. 2745.01, courts often liberally applied the the Van Fossen and Fyffe decisions to remove a variety of workplace accidents and injuries from the workers’ compensation system and hold employers liable in tort.
This week’s decisions in Stetter and Kaminski upholding R.C. 2745.01 as constitutional are huge victories for employers. Van Fossen and Fyffe’s fuzzy “substantial certainty” standard, which courts liberally applied to the detriment of many employers, has been conclusively replaced with a much tighter statute. Now, all workplace injuries are covered by the workers’ compensation system unless the employer deliberately intended to injure the employee. The Ohio Supreme Court has reaffirmed that workers’ compensation really is supposed to be an employee’s exclusive remedy for workplace injuries in all but the most egregious of cases.
Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.